MEMORANDUM OPINION

ELLIS, District Judge.

Stephen E. Tayman received a mandatory minimum sentence of five years under 21 U.S.C. § 841 for having conspired to distribute one hundred or more kilograms of marijuana, which sentence he now attacks by a motion pursuant to 28 U.S.C. § 2255. After Tayman's conviction and sentence became final, it was decided in United States v. Irvin, 2 F.3d 72 (4th Cir. 1993) cert. denied, ___ U.S. ___, 114 S.Ct. 1086, 127 L.Ed.2d 401 (1994), that mandatory minimum sentences imposed under § 841 must be based on the amount of drugs that was reasonably foreseeable to the defendant, rather than on the entire amount distributed by the conspiracy. Tayman alleges that, had a reasonable foreseeability determination been made at his sentencing as required by Irvin, far less than one hundred kilograms of marijuana would have been attributed to him. If this allegation is true, Tayman is entitled to relief under § 2255 because (i) Irvin announced a rule of substantive criminal law that applies retroactively to cases on collateral review, (ii) the fundamental error in sentencing alleged by Tayman presents exceptional circumstances warranting collateral relief, and (iii) Tayman has shown "cause and prejudice" excusing his failure to object earlier to the drug quantity attributed to him at sentencing. As a result, a hearing is necessary to determine whether Tayman was held accountable for drug quantities that were not reasonably foreseeable to him. If so, Tayman's § 2255 motion must be granted, his sentence must be vacated, and a new sentence imposed.

I.

In late 1989, Emery Wisenbaker and several other individuals began a conspiracy to transport marijuana from Houston and other locations to northern Virginia for distribution. Tayman rented a room to Wisenbaker, and because Wisenbaker did not have a driver's license, Tayman drove him on errands in exchange for meals and marijuana. Wisenbaker eventually recruited Tayman as a distributor of marijuana. During the three to four months he was involved in the conspiracy, Tayman received one pound of marijuana from Wisenbaker approximately every ten days, which amount he then distributed. Tayman also participated in the conspiracy by wiring money for Wisenbaker to a drug source in Houston, and by purchasing an airline ticket for Wisenbaker to travel to Texas in connection with the conspiracy's activities.

On February 25, 1992, Tayman was arrested at his house. Police executed a search warrant for the house and found drug trafficking paraphernalia and marijuana packaged for distribution. On March 19, Tayman pled guilty to a one-count criminal information charging him with conspiracy to possess and distribute one hundred kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and § 846. Neither the criminal information nor the plea agreement and accompanying statement of facts specified the quantity of drugs attributable to the conspiracy that was reasonably foreseeable to Tayman.

Tayman was sentenced on May 22, 1992. Prior to the sentencing hearing, the probation officer prepared a Pre-Sentence Investigation Report, which Tayman and his counsel reviewed. The report recommended that Tayman receive a base offense level of 26, the level appropriate for an offense involving one hundred to four hundred kilograms of marijuana. See United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1. The report recommended the one hundred kilogram figure because Tayman "pled guilty to Conspiracy to Distribute 100 Kilograms or More of Marijuana." Tayman's counsel submitted a number of proposed corrections and additions to the report, and requested a downward adjustment for "mitigating role" pursuant to U.S.S.G. § 3B1.2. At the hearing, defense counsel withdrew the proposed changes and the objection, except that he requested the report reflect that Tayman personally distributed only ten to twelve pounds of marijuana. The Assistant United States Attorney at the sentencing had no objection to the addition of this fact to the report. The Court accepted the change, noting that the addition "doesn't change the guidelines because [Tayman] is chargeable in the conspiracy with what he reasonably should have known, which is the full amount of the conspiracy." Tayman's counsel immediately expressed his agreement with the Court's understanding. Ultimately, Tayman's base offense level was fixed at 26, his total offense level at 24, and his criminal history score at category I, resulting in a sentencing range of 51 to 63 months. See U.S.S.G. § 5A. A statutory mandatory minimum sentence of five years trumped the guidelines range in the absence of a downward departure. See 21 U.S.C. § 841(b)(1)(B)(vii). Neither party having moved for a downward departure, the Court sentenced Tayman to sixty months imprisonment, four years supervised release, one hundred hours of community service, and a $50 special assessment.

Tayman did not appeal his conviction or sentence. Although he provided some assistance to the government, the government did not file a motion to reduce his sentence pursuant to Rule 35, Fed.R.Crim.P., in part because it was discovered that he had failed to disclose his involvement in several additional marijuana transactions.

Tayman now collaterally attacks his sentence pursuant to 28 U.S.C. § 2255. He alleges that no more than thirty pounds (approximately 18.75 kilograms) of marijuana were reasonably foreseeable to him. If true, Tayman's proper sentencing range would have been 15 to 21 months, far less than the five-year sentence he in fact received. In other words, Tayman claims that, had a proper sentence been imposed, he would have left prison well over a year ago.

II.

As a threshold matter, it is necessary to address the government's contention that Tayman has waived the right to seek relief under § 2255. In his plea agreement, Tayman waived his right to appeal his sentence. Yet, the plea agreement contained no reference to § 2255 or other collateral remedies. The government agrees that the appeal waiver "technically" does not apply here, but argues that the provision should be construed beyond its literal terms to bar Tayman from obtaining § 2255 relief. In the government's view, allowing Tayman to obtain review of his sentence under § 2255 would subvert the plea agreement's spirit.

A plea agreement is a contract. Plain and unambiguous terms must be enforced as they are written. Neither the government nor the defendant "should be able, any more than would be private contracting parties, unilaterally to renege or seek modification simply because of uninduced mistake or change of mind." United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986). Because plea agreements affect defendants' constitutional rights and the public's confidence in the criminal justice system, the government has a special "responsibility for insuring precision in the agreement." Id. at 301. It is not difficult for the government to write plea agreements that explicitly waive both appeal and § 2255 rights. Where the government does not do so, courts must conclude that the defendant has not waived his right to bring a § 2255 motion. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Rutan, 956 F.2d 827, 829 (8th Cir. 1992); cf. United States v. Clenney, 25 F.3d 1041, 1994 WL 233296 (4th Cir. 1994) (unpublished) (suggesting in dictum that waiver of right to appeal does not waive rights under § 2255). Under plea agreements, "[t]he government gets what it bargains for but nothing more." Pruitt, 32 F.3d at 433. Tayman's plea agreement literally and plainly provides only that he waived his right to appeal. It therefore does not preclude this motion under § 2255.

III.

In this § 2255 motion, Tayman attacks the mandatory minimum sentence that was imposed on him pursuant to 21 U.S.C. § 841(b)(1). He received a five-year sentence, appropriate for an offense involving one hundred kilograms or more of marijuana. He argues that the Court imposed the five-year mandatory minimum sentence without considering whether the one hundred kilogram amount was reasonably foreseeable to him. Although the conspiracy as a whole involved well over one hundred kilograms, Tayman contends that he neither personally distributed that amount, nor could have reasonably foreseen the distribution of such an amount. Instead, he claims that less than twenty kilograms of marijuana was reasonably foreseeable to him.

Simply put, Tayman seeks to take advantage of the holding in United States v. Irvin, 2 F.3d 72 (4th Cir. 1993), a decision rendered after his conviction and sentence became final. In Irvin, a unanimous panel of the Fourth Circuit held that a district court must determine the quantity of narcotics reasonably foreseeable to the defendant before applying the mandatory minimum sentence provisions of 21 U.S.C. § 841. In other words, mandatory minimum sentences under § 841 must be based on the amount of drugs that was reasonably foreseeable to the individual co-conspirator being sentenced, rather than on the entire amount of drugs attributable to the conspiracy as a whole. The central question here is one of retroactivity: May a defendant rely on Irvin in collaterally attacking his sentence where, as here, his conviction became final before Irvin was decided?

The long and well-established traditional principle is that judicial decisions, unlike legislative enactments, generally apply retroactively as well as prospectively. This approach is "overwhelmingly the norm, and is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law." James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535, 111 S.Ct. 2439, 2443, 115 L.Ed.2d 481 (1991) (plurality opinion) (citations omitted). For a time, bowing to recognition of "the sometimes inequitable and disruptive effects of law-changing decisions," the Supreme Court departed from the traditional rule of full retroactivity and applied a "balancing" test to determine whether to apply its decisions retroactively or only prospectively. More recently, the Supreme Court has returned to the traditional requirement that all rules of federal law, whether criminal or civil, "must be given full retroactive effect in all cases still open on direct review." Harper v. Virginia Dep't of Taxation, ___ U.S. ___, ___, 113 S.Ct. 2510, 2517, 125 L.Ed.2d 74 (1993) (civil); Griffith v. Kentucky, 479 U.S. 314, 320-28, 107 S.Ct. 708, 711-16, 93 L.Ed.2d 649 (1987) (criminal).

In other words, had Tayman's case been pending on direct appeal when Irvin was decided, Irvin would apply retroactively to it. The issue is more complicated because Tayman's conviction and sentence were already final when Irvin was decided. The Supreme Court does not require that decisions apply retroactively to cases presented, as here, on collateral review. Although the parties agree that Harper and Griffith do not control here, they disagree about what standard determines whether Irvin applies retroactively to Tayman's case.

A.

The government argues that Irvin's retroactivity is governed by the Supreme Court's decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and succeeding cases. In these cases, the Supreme Court addressed the question whether "new constitutional rules of criminal procedure" apply retroactively to cases on collateral review. Teague, 489 U.S. at 299, 310, 316, 109 S.Ct. at 1069, 1075, 1078. The Linkletter balancing approach used prior to Teague proved too "unprincipled and inequitable" because it resolved retroactivity issues in a manner more legislative than judicial, in that the question turned on policy considerations rather than on principle. Id. at 304, 109 S.Ct. at 1072. Beginning in Teague, the Supreme Court discarded the balancing test in favor of an approach to retroactivity and collateral review that was born in several opinions written two decades earlier by Justice Harlan. Specifically, Harlan advocated a less elastic approach, under which new rules generally do not apply retroactively to cases on collateral review. See Teague, 489 U.S. at 305-10, 109 S.Ct. at 1072-75. According to the government, the Teague line of cases applies here, with the result that Tayman cannot prevail because his collateral attack rests on Irvin, a new rule.

The Supreme Court has stated more than once that Teague's analysis applies to "new constitutional rules of criminal procedure." Yet, the Supreme Court has never made clear that it applies only to such rules. Tayman contends that Teague does not apply here because Irvin's rule is neither constitutional nor procedural. Moreover, the Supreme Court has only had occasion to apply Teague's analysis in cases in which state prisoners sought habeas relief pursuant to 28 U.S.C. § 2254. Tayman, of course, is a federal prisoner whose claims arise under § 2255. Thus, there are several potential grounds on which to distinguish Teague from the case and bar, and it is therefore necessary to consider (1) whether Teague's analysis applies to § 2255 claims, (2) whether Teague applies to new decisions interpreting statutes or the common law rather than the Constitution, and (3) whether Teague applies to new rules of substantive criminal law as opposed to criminal procedure.

1.

In developing the analysis later adopted by the Supreme Court in Teague, Justice Harlan drew no distinction between § 2255 motions and other forms of collateral review such as habeas petitions under § 2254. Although the Supreme Court has never addressed the issue, several courts have held that Teague applies to § 2255 claims. Others have applied Teague's standards in § 2255 cases without discussion. The Supreme Court justified Teague's approach to retroactivity on two principal policy bases, namely (i) society's interest in the finality of criminal convictions, and (ii) federalism and comity principles which caution against instruction on states' criminal judgments. 489 U.S. at 308-10, 109 S.Ct. at 1074-75. Although federalism is irrelevant to § 2255 proceedings, finality concerns pertain equally to § 2255 motions and other forms of collateral review. Moreover, basic principles of equality counsel against giving more favorable treatment to federal prisoners' claims than to identical claims presented by state prisoners. See Elortegui, 743 F. Supp. at 831. Thus, Teague's analysis must be applied to § 2255 claims in the same manner as to other forms of collateral review.

2.

Analysis also points persuasively to the conclusion that Teague applies to new statutory and common-law rules, as well as to new constitutional decisions. Tayman contends that only constitutional rules are subject to limited retroactivity under Teague. Yet, there is nothing in the reasoning of Teague or related opinions to justify a distinction between new constitutional and non-constitutional rules. The policy concerns that motivated Teague, especially the need for finality, apply equally to both types of rules. In fact, if a distinction were drawn, new statutory and common-law rulings should receive even less retroactive application than constitutional ones, since the latter are generally more fundamental and essential to justice. Thus, a number of courts have held that Teague's analysis governs the retroactivity on collateral review of non-constitutional rulings. It therefore appears that the Supreme Court's repeated statement that Teague's analysis applies to "new constitutional rules" is merely a vestige of the fact that this analysis originated in cases involving only constitutional claims, and does not represent a restriction limiting Teague's reach. In sum, Teague controls the retroactive application of a new rule in § 2255 proceedings, whether or not the rule is based on the Constitution.

3.

Finally, it is necessary to consider whether Teague applies to decisions concerning substantive criminal law as well as to rules of criminal procedure. Logic and precedent compel the conclusion that the distinction between substantive and procedural rulings is a critical one, and that Teague's analysis applies only to rules of criminal procedure. As Tayman argues, substantive criminal decisions apply retroactively to cases on collateral as well as direct review.

The distinction in retroactive effect between new procedural and substantive rules predates Teague. During the period when Linkletter's balancing approach was used to determine the retroactivity of new rules of criminal procedure, the Supreme Court acknowledged that this approach did not readily apply to rules whose "practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial." Robinson v. Neil, 409 U.S. 505, 509, 93 S.Ct. 876, 878, 35 L.Ed.2d 29 (1973). Thus, the Supreme Court "recognized full retroactivity as a necessary adjunct to a ruling that a trial court lacked authority to convict or punish a criminal defendant in the first place." United States v. Johnson, 457 U.S. 537, 550, 102 S.Ct. 2579, 2587, 73 L.Ed.2d 202 (1982) (citing cases); see Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974). The government concedes, as it must, that this principle remains viable today. Moreover, although Johnson cited only cases involving the retroactivity of constitutional rulings, it is clear that the principle described in Johnson is not limited to new constitutional decisions. Relying on Davis, the Fourth Circuit panel decision in United States v. Bonnette, 781 F.2d 357 (4th Cir. 1986), recognized that "when a court reinterprets a criminal statute so as to narrow it, thus essentially repealing the statute as to some defendants," the decision applies retroactively and may be utilized to overturn a conviction by means of a § 2255 motion. 781 F.2d at 362. In sum, a rule of substantive criminal law, even if a novel interpretation of a criminal statute, must be applied retroactively to cases on collateral review as well as direct appeal.

This conclusion is reinforced by Teague. In the opinions in which Justice Harlan developed the analysis later adopted by the Supreme Court in Teague and its progeny, Harlan emphasized that his analysis was written only with rules of "procedural due process" in mind, and that rules of "substantive due process" must stand on a different footing. Mackey, 401 U.S. at 692, 91 S.Ct. at 1180. He characterized the latter set of rules as "those that place certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Id. He noted that habeas corpus had traditionally been available for attacking convictions based on such rules, and should remain so.

Following Justice Harlan's lead, the Supreme Court in Teague and succeeding cases also distinguished between procedural and substantive rules. First, the Supreme Court repeatedly stated that Teague applies only to new rules of criminal procedure. Moreover, the Supreme Court carved an exception to Teague's analysis for rules placing "primary, private individual conduct" beyond the criminal law's reach. 489 U.S. at 307, 109 S.Ct. at 1073 (quoting Mackey, 401 U.S. at 692, 91 S.Ct. at 1180). As set forth in Teague, this exception covered only "new rules according constitutional protection to an actor's primary conduct," but the Supreme Court subsequently recognized that it properly included the remainder of the Constitution's substantive guarantees. Penry v. Lynaugh, 492 U.S. 302, 329-30, 109 S.Ct. 2934, 2952-53, 106 L.Ed.2d 256 (1989); see also Saffle v. Parks, 494 U.S. 484, 494, 110 S.Ct. 1257, 1263, 108 L.Ed.2d 415 (1990). In particular, the Court held that Teague's exception applied to a newly-announced rule that the Constitution "deprives the State of the power to impose a certain penalty." Penry, 492 U.S. at 330, 109 S.Ct. at 2953.

The Supreme Court has never applied Teague's exception to a non-constitutional, substantive rule. Yet, it has never had the occasion to do so, having considered Teague solely in cases involving constitutional claims. If Teague's general analysis applies to non-constitutional claims, as the government argues and Part II.B.2. of this opinion concludes, Teague's exceptions must apply to non-constitutional claims as well. The relevant exception, therefore, must exempt substantive rules from Teague's reach, whether or not they are based on federal statutes or on the Constitution. As a result, Teague is wholly consistent with the line of Supreme Court authority that includes Robinson, Davis, and Johnson. Together, the cases clearly establish that substantive rules of criminal law must be applied retroactively to cases on collateral review.

It is important to note that the Supreme Court's distinction between procedural and substantive rules is soundly grounded in policy considerations. There is a far greater willingness to correct criminal judgments that are later deemed to be substantively incorrect than there is to upset convictions, especially state convictions, obtained in reliance on procedures then thought valid. In addition to the greater injustice involved in punishing a defendant for conduct that courts later decide was not prohibited, reinterpretations of substantive criminal law give rise to the notion that the trial court never had jurisdiction to impose the criminal sanction. Finally, as Justice Harlan noted, where substantive rules are at issue, "[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose." Mackey, 401 U.S. at 693, 91 S.Ct. at 1180.

It is therefore plain, in logic and precedent, that Teague's analysis applies only to new rules of criminal procedure, and not to new rules of substantive criminal law. In the case at bar, the critical question therefore becomes whether the rule announced in Irvin was substantive or procedural in nature.

B.

It is clear that Irvin's rule was substantive rather than procedural. Although the government correctly notes that the line separating procedure and substance is not always a bright one, it is plain that Irvin falls squarely on the latter side of that line. Irvin involved the scope of a criminal penalty provision. Specifically, the question presented in Irvin was what conduct triggers the penalties set forth in 21 U.S.C. § 841(b). The panel held that the mandatory minimum sentences in § 841(b) do not apply to defendants who participated in conspiracies that trafficked in the stated quantities of narcotics unless the required quantity was reasonably foreseeable to the defendant. Thus, Irvin did not "prescribe procedural rules that govern the conduct of a trial." Robinson, 409 U.S. at 509, 93 S.Ct. at 878. It did not relate to the processes by which criminal judgments are obtained. Instead, it recognized that the "trial court lacked authority" to impose a mandatory minimum sentence on Irvin based on amounts that were not reasonably foreseeable to him. Johnson, 457 U.S. at 550, 102 S.Ct. at 2587. In other words, Irvin "reinterpret[ed] a criminal statute so as to narrow it, thus essentially repealing the statute as to some defendants." Bonnette, 781 F.2d at 362. In short, Irvin is plainly a ruling concerning substantive criminal law.

The government contends that Irvin is not a substantive decision because it did not wholly "decriminalize" any conduct. According to the government, a judicial decision is substantive only if it establishes that a defendant is being punished for conduct which does not constitute a crime. Tayman admits that he committed a crime, and contends only that he erroneously received an unwarranted sentence under 21 U.S.C. § 841(b).

The government's argument unduly narrows the definition of a substantive rule. A substantive rule may establish that the defendant was innocent or that he should not have been convicted of a crime, but not all substantive rules do so. A sentencing rule that determines how much or what type of punishment can be imposed for a crime is also plainly substantive. This point is aptly demonstrated by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), in which the Supreme Court held that the Constitution forbids the imposition of the death penalty under the circumstances and the statute presented in the case. The decision merely forestalled imposition of a particular punishment, and did not require states to readjudicate guilt in any cases. See Robinson, 409 U.S. at 509, 93 S.Ct. at 878. Even so, for reasons too obvious to require elaboration, the rule announced in Furman was cited by the Supreme Court as a prime example of the type of substantive rule that must receive full retroactive application. Johnson, 457 U.S. at 550, 102 S.Ct. at 2587. A more recent example of a substantive, sentencing-related decision is Penry v. Lynaugh, 492 U.S. 302, 329-30, 109 S.Ct. 2934, 2952-53, 106 L.Ed.2d 256 (1989). There, the Supreme Court held that the Eighth Amendment prohibits execution of a mentally-retarded person. Again, Penry did not establish that the defendant's conduct was not a crime, or that he deserved no punishment. Instead, like Furman and Irvin, it merely restricted the application of a particular punishment. Even so, the Supreme Court unanimously agreed that this new constitutional interpretation fell squarely within Teague's exception for substantive criminal rules.

The fact that Irvin involved mandatory minimum sentences rather than the death penalty does not make it any less substantive. At least one recent decision reflects this sound conclusion. In United States v. Bermudez, 742 F. Supp. 556 (C.D.Cal. 1990), the defendant sought retroactive application on collateral review of a Ninth Circuit decision establishing that he erroneously received a mandatory minimum sentence under the provisions of the Armed Career Criminal Act. See 18 U.S.C. § 924(e). Distinguishing the case as involving "a substantive interpretation of a federal criminal statute," as opposed to a new rule of criminal procedure, the court held that it was fully retroactive. 742 F. Supp. at 558. Analogously, although Irvin did not establish that Tayman or anyone else had been convicted of conduct that was not a crime, it clarified the applicability of the mandatory minimum sentences in 21 U.S.C. § 841(b) and therefore constituted a rule of substantive criminal law.

In sum, Irvin announced a rule of substantive criminal law, rather than a rule of criminal procedure. Sound authority and reasoning thus compel the conclusion that Irvin must be applied retroactively to cases on collateral review.

IV.

This is not to say that collateral relief under § 2255 may be obtained based on any decision that announces a new rule of substantive criminal law. In other words, not every retroactive decision can be used to invalidate a conviction or sentence that is already final. Courts must carefully distinguish between the question of retroactivity, a matter of choice of law, and the further question of remedies. See James B. Beam Distilling, 501 U.S. at 535, 538, 111 S.Ct. at 2443, 2444-45 (Souter, J., plurality). Several additional hurdles must be surpassed before a retroactive decision will entitle a defendant to collateral relief.

A.

Where, as here, the grounds for a § 2255 motion are neither constitutional nor jurisdictional, it is well-established that the defendant cannot obtain collateral relief unless the situation presents "exceptional circumstances" and involves "a fundamental defect" creating "a complete miscarriage of justice." See United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979); United States v. Timmreck, 441 U.S. 780, 783-84, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979); Davis, 417 U.S. at 346, 94 S.Ct. at 2305; Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). To meet this requirement, the defendant need not allege or prove that he is innocent. See United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988) (court granting collateral relief is not required "to decide if the petitioners are bad men or even if they have committed crimes"), cert. denied, 491 U.S. 906, 109 S.Ct. 3190, 105 L.Ed.2d 699 (1989). Collateral relief is also available in exceptional circumstances to defendants who challenge only the extent of their punishment. See United States v. Maybeck, 23 F.3d 888, 894 (4th Cir. 1994) (granting § 2255 relief to defendant improperly classified as career offender and exposed to higher sentencing range); Bermudez, 742 F. Supp. at 558. Because no reasonable foreseeability determination was made, it is impossible to know what Tayman's proper sentence should have been. If Tayman's allegations prove true, and less than twenty kilograms of marijuana was reasonably foreseeable to him, his proper sentence may have been a mere one-fourth of the five-year sentence he received, far less than the amount of time he has already served. It is wholly unacceptable to suggest that, because a defendant was involved in a drug distribution conspiracy, no miscarriage of justice occurred in imprisoning him for a period significantly longer than was appropriate under the law. It is unacceptable because injustices befall the guilty as well as the innocent, for justice consists not only of convicting the guilty, but also of assigning them a lawful and just punishment. Where a mandatory minimum sentence was imposed in violation of Irvin's rule, a sentence that is substantially more harsh than the law otherwise provides, exceptional circumstances warranting collateral relief under § 2255 are plainly present. Thus, Tayman and the government will have the opportunity at an evidentiary hearing to present evidence as to the accuracy of Tayman's allegations concerning the reasonably foreseeable drug quantity.

B.

Finally, Irvin is of no benefit to Tayman, even if it applies retroactively to his case, unless it establishes an error in his sentence. The record reveals that, contrary to Irvin's requirement, there was no determination of the quantity of marijuana that was reasonably foreseeable to Tayman prior to the imposition of the mandatory minimum sentence. See Irvin, 2 F.3d at 78. Tayman pled guilty to a criminal information that attributed one hundred kilograms to the conspiracy, but the criminal information, plea agreement, and accompanying statement of facts were silent as to the quantity that was reasonably foreseeable to Tayman. The Pre-Sentence Investigation Report used the one hundred kilogram figure because that was the amount to which Tayman pled guilty. Neither party having objected to the one hundred kilogram quantity, the Court imposed a five-year mandatory minimum sentence based on that quantity. At sentencing, the Court noted that Tayman was being held responsible for one hundred kilograms, the full amount "he reasonably should have known" was distributed by the conspiracy. Yet, there was no occasion for the Court to evaluate whether the facts showed that one hundred kilograms was reasonably foreseeable to Tayman. In sum, the Court did not engage in the reasonable foreseeability analysis required by Irvin because the issue was not raised by either party.

Failure to raise an issue in the original proceeding or on direct appeal ordinarily constitutes procedural default barring collateral review. Under these circumstances, § 2255 relief may be obtained only if "cause and prejudice" are shown. See United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Maybeck, 23 F.3d at 891; United States v. Rowland, 848 F. Supp. 639, 644-45 (E.D.Va. 1994). Thus, to obtain § 2255 relief here, Tayman must show (1) cause excusing his procedural default, and (2) actual prejudice resulting from the error of which he complains. Frady, 456 U.S. at 168, 102 S.Ct. at 1594-95. Each requirement is separately addressed.

1.

Tayman did not object to the one hundred kilogram figure, or to the mandatory minimum sentence based on it, for the simple reason that Irvin had not yet been decided and counsel was not prescient enough to foresee it. Before that decision, neither he nor his counsel knew that 21 U.S.C. § 841(b) incorporated the concept of reasonable foreseeability. In other words, the cause for Tayman's failure to object was the novelty of the subsequent decision in Irvin.

The Supreme Court has held that a defendant seeking collateral relief may be excused for failing to make a contemporaneous objection on the ground that judicial decisions establishing the alleged error were not rendered until after his conviction became final. Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). A subsequent judicial decision will never excuse a procedural default that represents an intentional, tactical decision by competent counsel. Id. at 13-14, 104 S.Ct. at 2909. By contrast, a defendant's failure to raise an objection may be excused where the ground for the objection was "reasonably unknown" to counsel until later judicial decisions announced it. Id. at 14, 104 S.Ct. at 2909. The overlooked objection must be "so novel that its legal basis is not reasonably available to counsel." Id. at 16, 104 S.Ct. at 2910. Thus, the central question is whether Tayman and his counsel's failure to anticipate Irvin was reasonable and therefore excusable.

It must be emphasized that Tayman is not obligated to show that his counsel rendered ineffective assistance. Because Irvin applies retroactively to cases on collateral review, as here, Tayman does not need to invoke his Sixth Amendment rights to establish error in his sentence. Irvin alone establishes the error. Tayman must simply show that Irvin was sufficiently novel so that his attorney reasonably did not anticipate it. This determination is a wholly objective one, requiring only an assessment of the relevant legal authorities existing at the time of Tayman's sentencing. By contrast, were Tayman required to prove ineffective assistance to take advantage of Irvin, the outcome of this proceeding would be critically influenced by factors unique to Tayman's case, including the fact that Tayman's Sentencing Guidelines range partially exceeded the mandatory minimum sentence. See infra note 55. Allowing Irvin's retroactive application to turn on such idiosyncratic factors would severely undermine the Supreme Court's efforts to ensure that similarly situated defendants are treated the same with respect to retroactivity. See Teague, 489 U.S. at 303-05, 109 S.Ct. at 1071-72. In other words, if Irvin is retroactive, it should apply uniformly to those not sentenced in accordance with it. And it should make no difference that some of those sentenced without the benefit of Irvin were represented by lawyers not prescient enough to foresee Irvin.

Tayman has shown sufficient cause for not objecting earlier to the imposition of the five-year mandatory minimum sentence. The record contains no indication that Tayman or his counsel withheld objection for tactical reasons. Moreover, Tayman's claim was sufficiently novel at the time of his sentencing in May 1992 to excuse his counsel's failure to raise it. It was then genuinely uncertain whether 21 U.S.C. § 841(b) incorporated the principle of reasonable foreseeability with respect to drug quantities trafficked by a defendant's co-conspirators. No judicial opinions addressing the question had been published. The answer was far from self-evident. The statute itself does not contain the words "reasonably foreseeable." It merely provides that the mandatory minimum sentences apply in cases "involving" the stated quantities of drugs. As the Irvin panel recognized, this ambiguous language is susceptible to various interpretations. 2 F.3d at 76-77. Moreover, the legislative history of § 841 is silent on this issue. It contains no reference to "reasonable foreseeability" or any other standard. Id. at 77; Martinez, 987 F.2d at 925-26. In the face of this uncertainty, the Irvin panel concluded that "the most reasonable interpretation" of the statute was that it incorporates the reasonable foreseeability principle. 2 F.3d at 77. Under these circumstances, Tayman's claim was sufficiently novel at the time of his sentencing so that his counsel's failure to raise it was not unreasonable and may be excused.

2.

Again, the parties will have the opportunity to present evidence at a hearing as to whether one hundred kilograms of marijuana was reasonably foreseeable to Tayman. For now, it is sufficient to note that the record does not conclusively show that Tayman did not suffer actual prejudice. See 28 U.S.C. § 2255. From late 1989 to March 1992, the government believes that the conspiracy as a whole trafficked 400 to 700 kilograms of marijuana. Tayman's involvement in the conspiracy lasted only approximately four months, during which time he personally received and distributed a total of ten pounds (6.25 kilograms) of marijuana. Of course, he could not reasonably have believed that the conspiracy's activities were limited to that amount. He acted as both landlord and occasional chauffeur for Wisenbaker, the head of the conspiracy, who was supplying a total of five to ten pounds (approximately three to six kilograms) of marijuana to others each week. Tayman also assisted Wisenbaker by transferring $11,000 to drug sources in Texas, and by purchasing an airline ticket for Wisenbaker to travel in connection with the conspiracy's activities. While the government might have been able to prove from these facts that one hundred kilograms was reasonably foreseeable to Tayman, there is at least a substantial probability that it could not have done so. Had a lower drug quantity been used, it is almost certain that a significantly lower sentence would have been imposed. For example, had the Court found that ninety-nine kilograms was reasonably foreseeable to Tayman, Tayman's sentencing range would have been 41 to 51 months, with no statutory mandatory minimum. In sum, assuming Tayman's allegations are true, the failure of Tayman's counsel to object to the one hundred kilogram figure and the corresponding mandatory minimum sentence does not bar § 2255 relief here.

V.

Tayman has established that Irvin announced a rule of substantive criminal law that applies retroactively to his case, even on collateral review. The reasonable foreseeability analysis required by Irvin was not performed prior to the imposition of the mandatory minimum sentence. Moreover, because Irvin's rule was novel and therefore unavailable to Tayman's counsel at the time of sentencing, Tayman's failure to object earlier to his sentence may be excused. An evidentiary hearing is therefore necessary to settle the sole remaining issue, namely Tayman's allegation that his sentence was fundamentally wrong because less than one hundred kilograms of marijuana was reasonably foreseeable to him. If true, Tayman is entitled under § 2255 to resentencing. Accordingly, it is unnecessary to consider Tayman's additional argument that his counsel rendered ineffective assistance in violation of his Sixth Amendment rights by not objecting to the sentence imposed on him.

An appropriate order shall issue.